Consideration
65 The words "ordinarily resident in Australia" in s 188(1)(a) of the Bankruptcy Act bear their ordinary meaning as described (in the context of s 43 of the Act) by Lockhart J in Re Taylor, drawing on cases including Levene, Commissioners of Inland Revenue v Lysaght [1928] AC 234 and Akbarali (referred to in the judgment as R v Barnet London Borough Council; Ex parte Shah). As discussed by Lockhart J (at 197), whether a debtor is ordinarily resident in Australia is a question of fact and degree. Both for the purposes of s 43 and for s 188, the question whether the debtor is ordinarily resident in Australia is to be determined at a particular time. The expression conveys a person's settled and usual place of abode (see Re Vassis at 524-525 per Burchett J; Re Taylor at 197-198). A person may have two places of residence and may be resident (or ordinarily resident) in each at the same time (Re Taylor at 198). As Lockhart J said in Re Taylor at 198 (in the passage quoted by the primary judge set out above), the concept of "ordinary residence" for the purposes of the Act "connotes a place where in the ordinary course of a person's life he regularly or customarily lives".
66 In Re Vassis, Burchett J said (at 525) that if a person's home is in Australia, a merely temporary absence will not prevent his or her being "ordinarily resident in Australia". His Honour continued that it is a question of fact and degree at what point a temporary absence might, if sufficiently prolonged, prevent its being proper to continue to regard him or her as ordinarily resident in Australia. Burchett J quoted with approval the following statement of Lord Scarman in Akbarali (at 344): "For if there be proved a regular, habitual mode of life in a particular place, the continuity of which has persisted despite temporary absences, ordinary residence is established provided only it is adopted voluntarily and for a settled purpose."
67 Although Re Taylor and Re Vassis arose in the context of s 43 of the Bankruptcy Act, the approach taken is equally applicable in relation to s 188. The jurisdictional connections set out in s 188 are expressed in substantially the same terms as s 43 and there is no reason to think a different meaning was intended.
68 In the present case, Mr Compton had lived in Australia for the whole of his life until his (relatively recent) move to Virginia. He was born in Australia, was an Australian citizen, was educated in Australia, and filed tax returns in Australia as an Australian taxation resident. His children were born in Australia and are Australian citizens. Mr Compton's wife is the registered proprietor of a property in Australia, which Mr Compton nominates as his family home. The creditor's petition presented against Mr Compton by Ramsay Health Care was premised on one of the jurisdictional connections in s 43 of the Bankruptcy Act being satisfied at the time of the alleged act of bankruptcy (ie, 21 May 2015). There is no doubt, on the evidence, that Mr Compton was ordinarily resident in Australia at that time. In these circumstances, the question whether Mr Compton was ordinarily resident in Australia at the time he signed the Controlling Trustee Authority was to be approached by asking whether he remained ordinarily resident in Australia (cf Re Taylor at 200). However, the primary judge did not approach the matter in this way. Rather, his Honour appears to have started with the proposition that Mr Compton was now resident in Virginia and then considered whether the evidence established that he was ordinarily resident in Australia, holding that no conclusion to this effect could be reached. In our respectful opinion, this was an erroneous approach in the circumstances, for the reasons we have outlined above.
69 Approaching the matter in the way that we have indicated, the evidence established that Mr Compton moved to Virginia for reasons connected with his health and the health of his father-in-law. These were reasons of a temporary nature. While Mr Compton had worked for the United States Postal Service in Virginia, the extent of this employment was limited (the income from this source, as disclosed in his statement of affairs, was $4,000). To the extent that Mr Compton continued to provide consultancy services, this was mainly, if not entirely, to firms located in Australia. Having regard to these objective matters, as well as the evidence of Mr Compton's intention as set out in his affidavit, the position that Mr Compton was ordinarily resident in Australia was not displaced. Mr Compton remained ordinarily resident in Australia at the time he signed the Controlling Trustee Authority.
70 It follows that Mr Compton satisfied one of the jurisdictional connections referred to in s 188(1) and the authority he signed was effective (no other basis having been raised to suggest that the authority was not effective).
71 We have reached the above conclusion without reference to the Certificate of Appointment of Trustee and the evidentiary effect of reg 13.07 of the Bankruptcy Regulations. In our view, however, this provides a further and independent basis for reaching the same conclusion. The Certificate of Appointment of Trustee contained statements to the effect that Mr Weston had on 1 June 2017 been appointed as trustee in relation to Mr Compton pursuant to a s 188 authority. As stated in the certificate, this information had been extracted from the National Personal Insolvency Index. By virtue of reg 13.07, the Certificate of Appointment of Trustee was in a proceeding "proof, in the absence of evidence to the contrary, of the information on the Index that is stated in it", that is, that Mr Weston had on that date been appointed as trustee in relation to Mr Compton pursuant to a s 188 authority.
72 In our view, the words "to the contrary" in reg 13.07 mean "to the opposite effect". Moreover, to be evidence to the contrary, the evidence must at least be accepted by the tribunal of fact as having some weight. See, albeit in relation to statutory provisions in a different context, Director of Public Prosecutions (Vic) v Cummings at [35]; Director of Public Prosecutions (NSW) v Zhang (2007) 48 MVR 78; [2007] NSWSC 308 at [147]; Agar v McCabe (2015) 72 MVR 130; [2015] VSC 378 at [20]-[23]; cf Machirus v Police [1983] NZLR 764 at 767.
73 The primary judge considered that evidence to the contrary was provided by the "very terms of Mr Compton's affidavit". We assume that his Honour was referring to the fact that, as disclosed in Mr Compton's affidavit, he was residing in the USA. However, we would respectfully disagree with the proposition that Mr Compton's affidavit constituted "evidence to the contrary". Mr Compton's affidavit described the residing in the USA as "temporary". The fact that he was residing temporarily in the USA raised the question whether Mr Compton remained ordinarily resident in Australia. It was not evidence "to the opposite effect" of the proposition that he was ordinarily resident in Australia. Thus, the evidentiary effect of the Certificate of Appointment of Trustee was not displaced by the evidence in Mr Compton's affidavit. Nor, for the same reasons, was it displaced by Ms Perry's affidavit. Given our conclusion based on reg 13.07, it is unnecessary to consider reg 13.10.
74 It follows from the above that proceedings relating to the creditor's petition were, by force of s 189AAA, stayed until: the conclusion of the first or only meeting of the debtor's creditors called under the s 188 authority; or the adjournment of the meeting, whichever is the earlier.
75 In light of the above conclusions, it is unnecessary to reach a concluded view as to whether Mr Compton was carrying on business in Australia at the time he signed the Controlling Trustee Authority (and putting to one side the evidentiary effect of the Certificate of Appointment of Trustee). However, we make the following observations. First, the affidavit of Mr Compton did not address the question whether he was carrying on business in Australia in any detail. It contained only a brief statement to the effect that he was providing financial consultancy services to a firm that had nine offices in Australia and dealt with Australian clients and Australian issues. Secondly, insofar as reliance was placed on the documents in the bundle of documents that went into evidence, these provided little additional detail and were, in some respects, confusing or contradictory. Thirdly, the matters relevant to the question whether Mr Compton was carrying on business in Australia were within his knowledge and it was therefore incumbent upon him to provide cogent evidence of such matters if he sought to establish the proposition that he was carrying on business in Australia.